Safiullah Ahmadi v Guardian News & Media Limited

An imputation that a person is gay or is in a same-sex relationship is not, without more, defamatory at common law. The test is whether the publication would substantially adversely affect the claimant’s reputation in the eyes of right-thinking members of society generally, rather than a particular cultural, religious or social section. The domestic legal framework and modern judicial decisions demonstrate a fundamental change in societal attitudes. A publication must also arguably refer to the claimant when read as a whole by the hypothetical reasonable reader. A strikingly similar photograph does not suffice where the article’s detailed identifying information points to another person and the photograph could reasonably be understood as an error. Serious harm requires evidence of practical reputational impact within the jurisdiction.

The claimant brought a defamation claim concerning a Guardian article about the murder of a gay Afghan medical student. The article was accompanied by a photograph which the claimant said depicted him, although the text identified the person depicted as Hamed Sabouri. The claimant alleged meanings that there were reasonable grounds to suspect that he was homosexual and had been in a relationship with another man.

The defendant applied for strike-out and summary judgment on several grounds, including defamatory meaning, reference, serious harm, limitation, abuse of process and defective service. The central issues were whether the pleaded meanings were capable of being defamatory, whether the publication arguably referred to the claimant, and whether the procedural objections required disposal of the claim.

1. Outcome. Summary judgment was entered for the defendant. The claim form and particulars of claim were struck out, and the action was dismissed.
2. Defamatory meaning. Applying the common-law test in Monroe v Hopkins, a statement is defamatory only if it tends substantially adversely to affect the claimant’s reputation in the eyes of right-thinking members of society generally. The court rejected reliance on the views of particular sections of society or on the Afghanistan Penal Code 2018. The domestic legal framework, including the decriminalisation of private homosexual acts, protection against sexual-orientation discrimination, recognition of same-sex relationships and judicial decisions requiring equal respect and dignity, demonstrated a seismic change in societal attitudes. An imputation that a person is gay or is in a same-sex relationship was therefore not defamatory without an additional allegation such as hypocrisy, dishonesty or homophobic conduct.
3. Reference. The article, read as a whole in accordance with Koutsogiannis v Random House Group and Dyson v Channel Four, clearly concerned Hamed Sabouri, who was named and described as dead. A reasonable reader acquainted with the claimant would not treat the photograph as sufficient to identify him as the subject of the article’s imputations. The reasonable alternatives were that the photograph depicted Mr Sabouri, who resembled the claimant, or that it had been included in error.
4. Serious harm. The claimant had no real prospect of establishing serious reputational harm within the jurisdiction. His asserted fear of the Taliban and decision to go into hiding were subjective fears, not particulars demonstrating serious harm to reputation by publication in this jurisdiction.
5. Other procedural issues. The limitation defence was not suitable for summary disposal because the claimant had a real prospect of showing that the claim form lodged on 11 October 2023 was the form subsequently issued, within the limitation period. The court also refused to declare that it lacked jurisdiction because particulars of claim had been served late. That defect could be addressed by an extension, alternative service, dispensation or relief from sanctions, although such applications had become futile after the substantive dismissal.

First-instance decision. No prior decision in the same proceedings is stated.